(b) Special assignments. The fact that an employee may be required to perform an additional task outside his regular working hours would not justify payment of a higher wage rate to that employee for all hours worked. However, employees who are assigned a different and unrelated task to be performed outside the regular workday may under some circumstances be paid at a different rate of pay for the time spent in performing such additional duty provided such rate is commensurate with the task performed. For example, suppose a male employee is regularly employed in the same job with female employees in the same establishment in work which requires equal skill, effort, and responsibility, and is performed under similar working conditions, except that the male employee must carry money to a bank after the establishment closes at night. Such an employee may be paid at a different rate for the time spent in performing this unrelated task if the rate is appropriate to the task performed and the payment is bona fide and not simply used as a device to escape the equal pay requirements of the Act.

(c) Vacation or holiday pay. Since vacation or holiday pay is deemed to be remuneration for employment included in wages within the meaning of the Act, if employees of one sex receive vacation pay for a greater number of hours than employees of the opposite sex, a prohibited wage rate differential is being paid if their work is subject to the equal pay standard and the differential is not shown to come within any of the specified exceptions.

(d) Contributions to employee benefit plans. If employer contributions to a plan providing insurance or similar benefits to employees are equal

13

for both men and women, no wage differential prohibited by the equal pay provisions will result from such payments, even though the benefits which accrue to the employees in question are greater for one sex than for the other. The mere fact that the employer may make unequal contributions for employees of opposite sexes in such a situation will not, however, be considered to indicate that the employer's payments are in violation of section 6(d), if the resulting benefits are equal for such employees.

(e) Commissions. The establishment of different rates of commission on different types of merchandise would not result in a violation of the equal pay provisions where the factor of sex provides no part of the basis for the differential. For example, suppose that a retail store maintains two shoe departments, each having employees of both sexes, that the shoes carried in the two departments differ in style, quality, and price, and that the male and female sales clerks in the one department are performing "equal work" with those in the other. In such a situation, a prohibited differential would not result from payment of a lower commission rate in the department where a lower price line with a lower markup is sold than in the other department where the merchandise is higher priced and has a higher markup, if the employer can show that the commission rates paid in each department are applied equally to the employees of both sexes in the establishment for all employment in that department and that the factor of sex has played no part in the setting of the different commission rates.

[31 F.R. 6770, May 6, 1966]

Sections 800.117-800.118.-[Reserved]

Section 800.119.-The job concept in general. Section 6(d) (1) of the Act prohibits an employer from paying to employees of one sex wages at rates lower than he pays employees of the opposite sex for "equal work on jobs" described by the statute in terms of equality of the "skill, effort, and responsibility" required for performance and similarity of the "working conditions" under which they are performed. This descriptive language refers to "jobs". In applying the various

327-757 - 682

wage rate differentials which are based on sex; nothing in the equal pay provisions is intended to prohibit differences in wage rates that are based not at all on sex but wholly on other factors. (See S. Rept. No. 176, 88th Cong. 1st sess., p. 4; H. Rept. No. 309, 88th Cong. 1st sess., p. 2.)

Section 800.120.-Effect of differences between jobs in general.

There is evidence that Congress intended that jobs of the same or closely related character should be compared in applying the equal pay for equal work standard (Daily Congressional Record, House, May 23, 1963, pp. 8686, 8698). Jobs that require equal skill, effort, and responsibility in their performance within the meaning of the Act are usually not identical in every respect (Daily Congressional Record, Senate, May 28, 1963, p. 9219). Congress did not intend that inconsequential differences in job content would be a valid excuse for payment of a lower wage to an employee of one sex than to an employee of the opposite sex if the two are performing equal work on essentially the same jobs in the same establishment. It will be remembered in this connection. that the National War Labor Board (to the experience of which attention is directed in the Senate and House Committee Reports) developed a policy of ignoring inconsequential differences in job content in administering equal pay for equal work provisions (Brown & Sharp Manufacturing Co. Case No. 2228-D, Sept. 25, 1942). On the other hand, it is clear that Congress did not intend to apply the equal pay standard to jobs substantially differing in their terms and conditions. Thus, the question of whether a female bookkeeper should be paid as much as a male file clerk required to perform a substantially different job is outside the purview of the equal pay provisions. It is also clear that the equal pay standard is not to be applied where only men are employed in the establishment in one job and only women are employed in a dissimilar job. For example, the standard would not apply where only women are employed in clerk typist positions and only men are employed in jobs as administrative secretaries if the latter really require substantially different duties. Section 800.121.-Job content controlling.

Application of the equal pay standard is not dependent on job classifications or titles but de

pends rather on actual job requirements and performance. For example, the fact that jobs performed by male and female employees may have the same total point value under an evaluation system in use by the employer does not in itself mean that the jobs concerned are equal according to the terms of the statute. Conversely, although the point values allocated to jobs may add up to unequal totals, it does not necessarily follow that the work being performed in such jobs is unequal when the statutory tests of the equal pay standard are applied. Job titles are frequently of such a general nature as to provide very little guidance in determining the application of the equal pay standard. For example, the job title "clerk" may be applied to employees who perform a variety of duties so dissimilar as to place many of them beyond the scope of comparison under the statute. Similarly, jobs included under the title "stock clerk" may include an employee of one sex who spends all or most of his working hours in shifting and moving goods in the establishment whereas another employee, of the opposite sex, may also be described as a "stock clerk" but be engaged entirely in checking inventory. Clearly, the equal pay standard would not apply where jobs require such substantially dif ferent duties, even though the job titles are identical. In other situations, including those which exist in the case of jobs identified by the general title "retail clerks", the facts may show that equal skill, effort, and responsibility are required in the jobs of male and female employees notwithstanding they are engaged in selling different kinds of merchandise. In all such situations, the application of the equal pay standard will have to be determined by applying the terms of the statute to the full factual situation.

Section 800.122.-General guides for testing equality of jobs.

(a) What constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined. In interpreting these key terms of the statute, the broad remedial purpose of the law must be taken into consideration. The terms are considered to constitute three separate tests, each of which must be met in order for the equal pay standard to apply. In applying the tests it should be kept in mind that "equal" does not mean "identical"

(Daily Congressional Record, Senate, May 28, 1963, p. 9219). Insubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable. On the other hand, substantial differences, such as those customarily associated with differences in wage levels when the jobs are performed by persons of one sex only, will ordinarily demonstrate an inequality as between the jobs justifying differences in pay. In determining whether job differences are so substantial as to make jobs unequal, it is pertinent to inquire whether and to what extent significance has been given to such differences in setting the wage levels for such jobs. Such an inquiry may, for example, disclose that apparent differences between jobs have not been recognized as relevant for wage purposes and that the facts as a whole support the conclusion that the differences are too insubstantial to prevent the jobs from being equal in all significant respects under the law.

(b) To illustrate, where employees of opposite sexes are employed in jobs in which the duties they are required to perform and the working conditions are substantially the same, except that an employee of one sex is required to perform some duty or duties involving a higher skill which an employee of the other sex is not required to perform, the fact that the duties are different in this respect is insufficient to remove the jobs from the application of the equal pay standard if it also appears that the employer is paying a lower wage rate to the employee performing the additional duties notwithstanding the additional skill which they involve. In other situations, where employees of opposite sex are employed in jobs which are equal in the levels of skill, effort, and responsibility required for their performance, it may be alleged that the assignment to employees of one sex but not the other of certain duties requiring less skill makes the jobs too different for comparison under the equal pay provisions. But so long as the higher level of skill is required for the performance of the jobs occupied by employees of both sexes, the fact that some of the duties assigned to employees of one sex require less skill than the employee must have for the job as a whole does not warrant any conclusion that the jobs are outside the purview of the equal pay standard.

Such a conclusion would be especially inappropriate if the employees of the sex to whom the less skilled work was assigned received a higher rate of pay. There are, of course, situations in which a review of all the pertinent facts will clearly establish that the male and female employees in question are not performing equal work on jobs which are equal in their requirements of skill, effort, and responsibility, and which are performed under similar working conditions. Where it is clear that this is so, the existence or extent of a wage differential between employees of opposite sexes cannot of itself provide a basis for holding an employer liable for violations under the provisions of section 6(d) of the Act.

Section 800.123.-Determining equality of job content in general.

In determining whether differences in job content are substantial in order to establish whether or not employees are performing equal work within the meaning of the Act, the amounts of time which employees spend in the performance of different duties are not the sole criteria. It is also necessary to consider the degree of difference in terms of skill, effort, and responsibility. These factors are related in such a manner that a general standard to determine equality of jobs cannot be set up solely on the basis of a percentage of time. Consequently, a finding that one job requires employees to expend greater effort for a certain percentage of their working time than employees performing another job, would not in itself establish that the two jobs do not constitute equal work. Similarly, the performance of jobs on different machines or equipment would not necessarily result in a determination that the work so performed is unequal within the meaning of the statute if the equal pay provisions otherwise apply. If the difference in skill or effort required for the operation of such equipment is inconsequential, payment of a higher wage rate to employees of one sex because of a difference in machines or equipment would constitute a prohibited wage rate differential. Likewise, the fact that jobs are performed in different departments or locations within the establishment would not necessarily be sufficient to demonstrate that unequal work is involved where the equal pay standard otherwise applies. This is particularly true in the case of retail establish

ments, and unless a showing can be made by the employer that the sale of one article requires such a higher degree of skill or effort than the sale of another article as to render the equal pay standard inapplicable, it will be assumed that the salesmen and saleswomen concerned are performing equal work. Although the equal pay provisions apply on an establishment basis and the jobs to be compared are those in the particular establishment, all relevant evidence that may demonstrate whether the skill, effort, and responsibility required in the jobs at the particular establishment are equal should be considered, whether this relates to the performance of like jobs in other establishments

or not.

Section 800.124.-Comparing "exempt" and "nonexempt" jobs.

Situations sometimes arise in which it is alleged that lower wages are being paid, in violation of the Act, to a nonexempt employee than to an exempt employee of the opposite sex for equal work on jobs said to be equal within the meaning of the Act. Usually it is necessary in such a case to scrutinize carefully the respective job requirements, working conditions, and pay arrangements before it is possible to reach an informed judgment as to the existence of any violation of the Act. To illustrate, suppose it is alleged that employees of opposite sexes are performing equal work within the meaning of the Act and that a wage discrimination on account of sex exists because one of such employees, but not the other, is paid the minimum compensation on a salary basis which is required for exemption as a bona fide executive or administrative employee and is treated by the employer as such an exempt employee under section 13(a)(1) of the

Act and the regulations in 29 CFR Part 541. In such a case, regard must be had to the fact that the regulations define an employee employed in a bona fide executive or administrative capacity in terms of the coexistence of a number of factors, only one of which is the receipt of compensation in a specified minimum amount on a salary basis. The existence of all these factors must be verified to determine whether the employer is correct in treating the employee who receives such salary as exempt. Regard must also be had to the fact that an employee who qualifies for exemption, because all the factors required by the regulations coexist, may be required to work as many hours as the employer may be able to persuade him to work for the stated salary, without any necessity of compliance by the employer with the minimum wage, equal pay or overtime compensation requirements of the Act. This is important because the fact that another employee of the opposite sex doing similar work does not receive the salary requisite for an exemption under the regulations would not in all cases mean that such employee is being paid at a lower rate of pay. In fact, because the nonexempt employee must receive at least the minimum wage for every hour worked and the prescribed additional compensation at the specified multiple of the regular rate for every such hour in excess of the applicable maximum workweek, it is possible, depending on the length of the workweek, that the pay in the nonexempt job may exceed the salary paid in the exempt job for the identical number of hours worked. For these reasons, a comparison of exempt and nonexempt jobs requires careful examination of all the facts and does not lend itself to the application of any general rules.

Section 800.125.-Jobs requiring equal skill in performance.

The jobs to which the equal pay standard is applicable are jobs requiring equal skill in their performance. Where the amount or degree of skill required to perform one job is substantially greater than that required to perform another job, the equal pay standard cannot apply even though the jobs may be equal in all other respects. Skill includes consideration of such factors as experience,

training, education, and ability. It must be measured in terms of the performance requirements of the job. If an employee must have essentially the same skill in order to perform either of two jobs, the jobs will qualify under the Act as jobs the performance of which requires equal skill, even though the employee in one of the jobs may not exercise the required skill as frequently or during as much of his working time as the employee in the other job. Possession of a skill not needed to meet require

the remaining one-third of the time, spends twice as much time operating a calculator as does the woman who prefers and is allowed to do most of the copying work required in the office, this would not preclude a conclusion that the performance of the two jobs requires equal skill if there is actually no distinction in the performance requirements of such jobs so far as the skills utilized in these tasks are concerned. Even if the man were required to do all of the calculating work in order to perform his job, it is not at all apparent that the jobs would require substantially different degrees of skill unless it should appear that operation of that calculator requires more training and can command a higher wage than the typing and related work performed by both the man and the woman, and that the work required to be done by the woman in the remaining one-third of the time requires less training and is recognized as commanding a lower wage whether performed by a

man or a woman.

Section 800.127.-Jobs requiring equal effort in performance.

The jobs to which the equal pay standard is applicable are jobs that require equal effort to perform. Where substantial differences exist in the amount or degree of effort required to be expended in the performance of jobs, the equal pay standard cannot apply even though the jobs may be equal in all other respects. Effort is concerned with the measurement of the physical or mental exertion needed for the performance of a job. Where jobs are otherwise equal under the Act, and there is no substantial difference in the amount or degree of effort which must be expended in performing the jobs under comparison, the jobs may require equal effort in their performance even though the effort may be exerted in different ways on the two jobs. Differences only in the kind of effort required to be expended in such a situation will not justify wage differentials.

Section 800.128.-Comparing effort requirements of jobs.

To illustrate the principle of equal effort exerted in different ways, suppose that a male checker employed by a supermarket is required to spend

part of his time carrying out heavy packages or replacing stock involving the lifting of heavy items whereas a female checker is required to devote an equal degree of effort during a similar portion of her time to performing fill-in work requiring greater dexterity-such as rearranging displays of spices or other small items. The difference in kind of effort required of the employees does not appear to make their efforts unequal in any respect which would justify a wage differential, where such differences in kind of effort expended to perform the job are not ordinarily considered a factor in setting wage levels. Further, the occasional or sporadic performance of an activity which may require extra physical or mental exertion is not alone sufficient to justify a finding of unequal effort. Suppose, however, that men and women are working side by side on a line assembling parts. Suppose further that one of the men who performs the operations at the end of the line must also lift the assembly, as he completes his part of it, and places it on a waiting pallet. In such a situation, a wage rate differential might be justified for the person (but only for the person) who is required to expend the extra effort in the performance of his job, provided that the extra